Mr. James Michael DeGracie, Corporation
Counsel/Personnel Director,
Jackson County, appearing on behalf of the County.

ARBITRATION AWARD

The Union and the County named above jointly requested that the Wisconsin
Employment Relations Commission appoint the undersigned to resolve a grievance
regarding the rights of an employee removed from her job by an elected official.
A hearing was held in Black River Falls on June 30, 1993, at which time the
parties were given full opportunity to present their evidence and arguments. The
parties completed filing briefs on August 30, 1993.

ISSUE:

The issue to be decided is this:

Did the County violate the collective bargaining agreement by
refusing to
allow the Grievant, Gloria Everson, the opportunity to bump a less senior
employee when she was removed from the deputy register of deeds position? If so,
what is the appropriate remedy?

CONTRACT LANGUAGE:

ARTICLE 3 - MANAGEMENT RIGHTS

SECTION 1. The County possesses the sole right to
operate County government
and all management rights repose in it, but such rights must be exercised
consistently with the provisions of this contract. These rights, which are
normally exercised by the Employer, include, but are not limited to, the
following:

A. To direct all operations of County
government.

B. To establish reasonable work rules and
reasonable schedules of work.

C. To hire, promote, transfer, schedule
and assign employees in
positions
within the County.

D. To suspend,
demote, discharge and take other disciplinary action against
employees for just cause.

E. To relieve employees of their duties
because of lack of work or for other
legitimate reasons.

F. To maintain efficiency of County
government operations entrusted to it.

G. To introduce new or improved methods
or facilities.

H. To change existing methods or
facilities.

I. To determine the kinds and amounts of
services to be performed as
pertains to County operations and the number of positions and kinds of
classifications to perform such services.

J. To contract out for goods and services,
except that such actions shall
not result in the lay-off of employees in the bargaining unit.

K. To determine the methods, means and
personnel by which such operations
are to be conducted.

L. To take necessary actions to carry out
the functions of the County in
situations of emergency.

M. To take necessary action to comply
with the state or federal law.

. . .

ARTICLE 7 - SENIORITY - PROBATION -
LAYOFF

. . .

SECTION 2. Loss of Seniority: An employee shall
lose all seniority rights
and his/her employment relationship shall be considered terminated for any of the
following reasons:

1. If he/she quits;

2
. If he/she is discharged;

3
. If he/she is absent from work in excess of three consecutive work
days without notifying the County, unless he/she has a valid excuse. The
employee is expected to report his absence promptly;

4
. If he/she is laid off for a period of more than two (2) years;

5
. If he/she retires or is retired;

6
. If he/she fails to report to work upon termination of a leave of
absence unless emergency circumstances prevent him/her from doing so. If an
emergency circumstance exists, the employee shall notify the employer of the
emergency circumstance within three (3) work days of the termination of a leave
of absence.

. . .

SECTION 5. Layoff Procedure: The County shall
have the sole right to
determine the position or positions to be eliminated. The selection of employees
to be laid off shall be made according to the following procedures: volunteers
shall be considered first, then temporary employees, then probationary employees
in the classification and then the employee with the least seniority within the
classification containing the positions being eliminated providing the remaining
employees are qualified to perform the remaining work.

An employee being laid off shall be afforded the opportunity to
replace an
employee with less seniority in a pay grade equal to or less than the pay grade
of the affected position. However, no employee may bump into any of the
following positions: Deputy Clerk of Court, Deputy Register of Deeds, Deputy
Treasurer and the Deputy County Clerk. Part-time employees may not bump a full
time employee.

. . .

ARTICLE 8 - JOB POSTING

SECTION 1. When it becomes necessary to fill
vacancies or new positions
within the bargaining unit, the Employer will post such vacancies or new
positions for five (5) working days, during which time interested employees may
apply by signing the posting. Job postings shall state the job to be filled,
qualifications for the job and the rate of pay. Posted positions shall be
awarded as promptly as possible following a posting to be qualified applicant.
Seniority and qualifications will be considered. When the qualifications of two
or more bargaining unit employees are relatively equal, seniority shall be the
determining factor. Regular employee applicants within the bargaining unit shall
be considered first in filling vacancies for new positions. Vacancies in the
position of Deputy Clerk of Court, Deputy Register of Deeds, Deputy Treasurer and
Deputy County Clerk shall be posted according to the above provisions, but may
be filled at the discretion of the elected official in the department without
adherence to the selection procedures contained above or the recall procedures
in Article 7, Section 6.

. . .

EXHIBIT A

CLASSIFICATIONS

GRADE(POSITION TITLES)

1 Maintenance Worker I

2 Account Clerk I

Secretary I

Maintenance Leadworker

3 Account Clerk II

Deputy Clerk of Courts

Deputy County Clerk

Deputy Register of Deeds

Deputy Treasurer

Tax Lister

Administrative Assistant I

Forestry Technician I

Secretary II

4 Administrative Assistant II

5 Computer Systems Operator

Register in Probate/Probate Registrar

Legal Secretary

. . .

BACKGROUND:

This grievance is about the rights of an employee to a position once that
employee has been removed by an elected official from an appointed position,
pursuant to Crawford County v. WERC, No. 92-0906, (Ct.App.IV, 1993). The
Crawford County case held that the Clerk of Courts and Register of Deeds have
the
statutory power to appoint and discharge their deputies.

Gloria Everson became a full time employee of the County on June 5, 1989.
She had worked as a part-time secretary for the previous five years. When
Everson became full time, she was in a Grade 2 position until she became the
Deputy Register of Deeds, which is a Grade 3 position. When former Register of
Deeds Lyle Larson died, his Deputy Register of Deeds was Kenlynn McCormick. Mary
Woods was appointed as Register of Deeds to succeed Larson, and she appointed
Everson to the deputy position, displacing McCormick. Everson remained as Deputy
Register of Deeds between March 17, 1992 and January 4, 1993. In November of
1992, Shari Marg was elected Register of Deeds. Former Corporation
Counsel/Personnel Director Kerry Sullivan-Flock notified Everson that she could
not continue in her position as Deputy Register of Deeds. Sullivan-Flock sent
the following letter to Everson on November 16, 1992:

This letter will serve to confirm our conversation on Friday,
November 13,
1992. The newly elected Register of Deeds has advised me that she does not wish
to deputize you; you will therefore not be able to act as Deputy Register of
Deeds under her.

As you know, you do have certain rights
under the union contract. You do
have the right to bump into any position that is currently a Grade 3 and which
is currently occupied by an individual with less seniority than you. My office
can provide you with a list of these positions. Ms. Marg has advised that she
wishes to deputize Bonnie Comstock, which will leave the Auxiliary Secretary
position vacant as of January 4, 1993. You are in no way obligated to move to
this position; however, it is an option.

You have until January 3, 1993 to advise my office what your
intentions are.

Everson planned on taking the vacant Auxiliary Secretary position until she
learned through a newspaper report in December of 1992 that a County committee
was considering cutting that position to a part-time job. So Everson decided to
bump another employee in order to keep a full-time position. Her position as
Deputy Register of Deeds was a Grade 3 position. On December 21, 1992, Everson
notified Sullivan-Flock that she decided to bump Genell Severson, who was a
Secretary II (and Grade 3) in the District Attorney's office.

However, Sullivan-Flock notified Everson that the Personnel Committee
decided that she should take the vacant position of Auxiliary Secretary, which
was vacant because the employee holding that job, Bonnie Comstock, became the new
Deputy Register of Deeds. The Auxiliary Secretary position was a Grade 2 level.
Everson filed a grievance on December 14, 1992, seeking to retain the position
as Deputy Register of Deeds. (1) On January
4, 1993, Sullivan-Flock responded to
Everson's grievance as follows:

Please be advised that the Personnel Committee, at their meeting
on January
4, 1993, did discuss the situation with the new Register of Deeds and
deputization. The Personnel Committee has decided to support the newly elected
Register of Deeds in her choice to deputize Bonnie Comstock. We will process the
grievance accordingly pursuant to the collective bargaining agreement.

In the interim, while the grievance is being processed, the
Committee has
determined that it is not in the best interests of any county office that any
position bumping take place. Therefore, they are opting to exercise their
management rights prescribed under Article 3, Section 1 of the Collective
Bargaining Agreement and are indicating to you that you must accept the vacant
position of Auxiliary Secretary. This is effective January 4, 1993. This is
necessary for the effective management control and efficient staffing of the courthouse
offices. The committee realizes
that this situation will need to
be addressed again at such time as an arbitration is reached that is not
favorable to the county. In the meantime, your cooperation is appreciated.

On January 12, 1993, the Union filed a class action grievance to get the
County to recognize bumping rights pursuant to Article 7. Everson is currently
a Secretary I in the U-W extension office, a Grade 2 position.

On January 14, 1993, Sullivan-Flock responded to the grievance and advised
the Union that it was the County's position that Article 7 of the collective
bargaining agreement had no application due to the fact that there had been no
"lay-off" and Article 7 would only apply when a lay-off occurred.

The parties stipulated that a bumping procedure may have an adverse impact
on the County's operations that can affect more than one person in more than one
office. For example, if the Deputy Treasurer were to bump an employee with less
seniority, it is possible that almost every employee in the bargaining unit could
be affected by continuous bumping. This could also happen every election.

THE PARTIES' POSITIONS:

The Union argues that the County reneged on its promise as first given
by
Sullivan-Flock, to the detriment of Everson, by requiring her to work in a
Grade 2 position when she was promised that she could bump into a Grade 3
position. While the Union believes Sullivan-Flock's letter of November 16, 1992,
should be dispositive of the issue, it also wants an interpretation based on
contractual language, as the issue is likely to arise again.

The Union asserts that the County's position violates Article 8, which
calls for vacancies to be posted and filled according to seniority and
qualifications. The County cannot assign employees into vacant positions, such
as the vacant one here, due to the rights of more senior employees who may want
the vacant position. Moreover, the County's requirement that Everson take the
Auxiliary Secretary position resulted in a demotion for Everson. Signing a
posting is optional under Article 8, and if Everson refused to sign a posting for
the Auxiliary Secretary position, the solution becomes a lay off in which layoff
procedures apply.

The Union further contends that Article 7, Section 5, was violated, as
Everson was eliminated from the position of Deputy Register of Deeds. While the
newly appointed Deputy also came from the bargaining unit, the Union points out
that if the Register of Deeds selected someone who was not a bargaining unit
member, the affected employee would be unemployed while less senior employees are
working. This would result in a constructive discharge in violation of the just
cause standard.

The County asserts that the collective bargaining agreement addresses the
issue of bumping only when there is a layoff. The County argues that no lay off
occurred here, where Everson lost no work as a result of the decision of the
newly elected Register of Deeds to appoint a different deputy. A lay off in the
bargaining agreement is contemplated when a position is eliminated, under Article
7, Section 5.

The County contends that since Everson was not laid off, she had no right
to bump an employee with less seniority in a pay grade equal to her's or less.
The County was within its management rights in offering her the position of
Auxiliary Secretary. The County notes that the Wisconsin Supreme Court has
stated that a layoff implies a temporary separation from employment rather than
a permanent termination of employment. While the Union contends that a reduction
in a pay grade is a constructive layoff, the contract only contemplates a layoff
when a position is eliminated.

The County points out that arbitrators have found that teachers whose full-time jobs
were reduced to part-time jobs were not laid off, due to the
distinction that goes with separation from employment in a layoff situation. The
County argues that it was within its management rights in this case and asks that
the grievance be denied.

DISCUSSION:

The position of Deputy Register of Deeds, as well as the other deputy
positions, is included in the bargaining unit. Accordingly, the employee holding
a deputy position retains certain rights accorded to bargaining unit members.
The parties have recognized that elected officials have certain powers pertaining
to these deputy positions, and dealt with that in their collective bargaining
agreement.

Under Article 3, Section M, of the management rights clause, the County is
obligated to comply with state law. It has done this by complying with an
elected official's decision to appoint her own deputy, as state law requires
(Crawford County, as noted previously). Under Section E of Article 3, the
County
may relieve employees of their duties because of lack or work or for other
legitimate reasons. Everson was relieved of her duties for a legitimate reason
-- the newly elected official had the power to name her own deputy, per Crawford
County.

The parties recognized the statutory powers of the elected officials and
specifically stated in the bargaining agreement that bargaining unit members
could not bump the deputies: ". . .no employee may bump into any of the following
positions: Deputy Clerk of Court, Deputy Register of Deeds, Deputy Treasurer and
the Deputy County Clerk." If the parties had intended that deputies who were not
reappointed would not have the right to bump other bargaining unit members, they
could have stated so.

When Everson was told that she could not retain the position of Deputy
Register of Deeds because the new Register of Deeds was picking a different
person as deputy, Everson was being laid off from the position of Deputy Register
of Deeds. Although the position remained in effect and another person was
appointed to it, Everson's status would have to be considered to be laid off.
The other choice is that she was discharged, and the County does not claim that
she was discharged. If the County had no openings in the bargaining unit at the
time of Everson's displacement from her job, she would have to be accorded lay
off status.

Therefore, Everson has the rights under the bargaining agreement accorded
to an employee who is laid off. She retained her seniority in the bargaining
unit, because under Article 7, Section 2, she would lose seniority rights for one
of six reasons. None of the six reasons for loss of seniority applies in this
case. Everson did not quit, she was not discharged, she was not absent without
notice, she was not laid off more than two years, she did not retire, she did not
fail to report to work following a leave of absence.

The County simply wishes to make things simple and efficient. The County
had an opening, and thought it would be least disruptive to place Everson in that
opening. The Union agrees that a bumping procedure can be very disruptive to
many employees and many County offices. However, the County cannot place Everson
in any position it wishes, which could result in a demotion, because of Article
7:

An employee being laid off shall be afforded the opportunity to
replace an
employee with less seniority in a pay grade equal to or less than the pay grade
of the affected position.

If the County had an opening in a Grade 1 position, it would be violating the
language regarding an pay grade equal to or less than the pay grade of the
affected position. The "affected position" was the position from which Everson
was removed, the Deputy Register of Deeds. Since this was a Grade 3 position,
Everson was entitled under Article 7 to bump into a Grade 3 or lesser position
if she had more seniority than the person holding the position. The parties
recognized in their contract that an employee could not bump into the four deputy
positions; they did not provide for the converse. This reinforces the
interpretation that they intended the displaced deputies to be accorded the same
status as any other employee being laid off and to be accorded the same rights.

Somewhat troubling is the fact that the bumping procedure allows for the
following inequity. Everson held a Grade 2 position before being appointed the
Deputy Register of Deeds. She did not attain a Grade 3 position through a
posting or by qualifying either through her abilities or seniority. Everson got
a Grade 3 position by the appointment of an elected official. She now has the
opportunity, via Article 7, to bump a Grade 3 employee even though she had not
attained such a grade before her appointment. The inequity might be worse if an
elected official took the opportunity to elevate lower grade employees through
short term appointments and then removed them, allowing them to bump higher grade
employees. However, the language calls for the bumping into the pay grade or
less of the "affected position," and the affected position is the deputy Grade
3 position. If the parties wish to rectify the potential inequity in the future,
they may do so by bargaining different language.

AWARD

The grievance is sustained.

The County violated the collective bargaining agreement by
refusing to allow
the Grievant, Gloria Everson, the opportunity to bump a less senior employee when
she was removed from the Deputy Register of Deeds position.

The County is ordered to give Everson the opportunity to bump a
less senior
employee in a pay grade equal to or less than the pay grade of the Deputy
Register of Deeds. The County is further ordered to make Everson whole by paying
to her any monetary losses suffered due to the refusal to allow her to bump
another employee. (2)

The Arbitrator will retain jurisdiction over this matter until
January 14,
1994, solely for the purpose of resolving any disputes over the scope and the
application of the remedy ordered.

2. At the hearing, Everson expressed satisfaction
with the Grade 2 position
she was holding and appeared to have no desire to bump someone else. If
Everson chooses not to bump into a Grade 3 position, she is not entitled to
any back pay for the difference between a Grade 3 and a Grade 2 position.